vide for the liability of tenants in common in possession to their co-tenants out of possession." The act consists of one section which reads thus:

"That in all cases in which any real estate is now or shall be hereafter held by two or more persons as tenants in common, and one or more of said tenants shall have been or shall hereafter be in possession of said real estate, it shall be lawful for any one or more of said tenants in common, not in possession, to sue for and recover from such tenants in possession his or their proportionate part of the rental value of said real estate for the time such real estate shall have been in possession as aforesaid; and in case of partition of such real estate held in common as aforesaid, the parties in possession shall have deducted from their distributive shares of said real estate the rental value thereof to which their co-tenant or tenants are entitled."

In the interpretation of an Act of Assembly it is the duty of the Court to ascertain and give full effect to the intention of the legislature, and to give the words of the act their plain and ordinary significance. There is nothing ambiguous or uncertain in the act now before us. The legislative intent is expressed in simple words and phrases, and there should be no difficulty whatever in reaching a conclusion as to the meaning of the act. Nevertheless a question has been raised in several Common Pleas Courts as to its application under certain conditions and circumstances. In the case of Stamm's Estate, 17 D. R. 863, the Court held that the Act of 1895 was of a declaratory character and only supplied a remedy which did not exist at common law. The opinion states that "the history of judicial interpretation of radical legislative enactments exhibits a deliberative attitude on the part of courts," and that "influenced by conservative habits of thought they reluctantly let go of the old and cautiously take up the new." We cannot see that the Act of 1895 is in any sense radical. It provides a simple remedy for the protection of tenants in common, out of possession of land, against those in possession who have enjoyed the full benefits of the common property, and it specifies a fair standard of liability, viz., the proportionate share of the rental value. We find a disinclination to give full effect to the act in question in the opinion

of Judge Woodward in the case of Jevons vs. Kline, 9 Kulp 370, wherein he holds that as to rents between tenants in common the act does not apply "for the reason that the plaintiffs and defendant were all, in contemplation of law, in possession of the real estate involved in the partition," unless the possession by one tenant be attended with circumstances demonstrative of an adverse intent, such as a refusal of a demand by the co-tenant for his share of the rent. Judge Woodward refers to the case of Norris vs. Gould, 15 W. N. C., 187, of which Mr. Justice Mitchell states: "The best summary of the law in our own books will be found in the admirably clear and accurate opinion of Judge Thayer in Norris vs. Gould." But, this case was decided in 1884, and it states the law on the subject as it was at that time. The commendation of Judge Thayer's opinion is found in Gas Co. vs. Transit Co., 172 Pa., 421, which case is also cited as authority by Judge Woodward in Jevons vs. Kline, supra. It is true that the Transit Company case was argued in October, 1895, and decided in January, 1896; nevertheless, it is apparent that the controversy in the court below was tried before the passage of the Act of 1895, and that the said act was not considered by the Supreme Court.

Other Common Pleas Courts have given full effect to the Act of Assembly. We refer to Lancaster vs. Flowers, 11 D. R., 495, where the act is upheld by Judge Arnold after a full discussion. We also find a Luzerne county case, Keller vs. Lamb, 10 Kulp, 246, in which Judge Halsey considers the effect of the Act of 1895 on prior legislation. The application of the act in a proper case is recognized by Judge von Moschzisker in Slifer vs. Slifer, 16 D. R., 239. And incidentally, yet without any intimation of doubt, the act is sustained by the Superior Court in the case of Dorrance vs. Ryan, 35 Sup. Ct. Rep., 180.

We are of the opinion that the Act of 1895 should be upheld and commended, because it furnishes effective and highly necessary remedial legislation for the adjustment of the rights of tenants in common in relation to the use and occupation of property held jointly. Controversies as to such rights have been fruitful of much litigation in the courts and it must be conceded that the remedies prior to 1895 were inadequate and frequently ended in a failure of justice.

In the case at bar the facts are very simple. The defendant had been in the exclusive possession of the whole of the joint property for several years, and frequent demands had been made upon her by the plaintiff for his proportionate share of the rent. The case is free from any of the complications which influenced the earlier decisions as to the effect of the Act of 1895.

The next exception relates to the plaintiff's claim of rent. The master has found that $150 per annum and the taxes was the fair rental value of the property. For a period of four years the plaintiff's share is $400. In fixing this period the master finds that the verdict in the ejectment case of Lee vs. Hamilton (involving the joint property) was rendered January 18, 1906. Belle Hamilton entered a judgment for $800 against Caroline Hamilton on December 29, 1909. This makes, practically, the period of four years. The master has allowed the plaintiff the $400, his share of the rent, regardless of the effect of the judgment. Quoting from the text books he holds that "the lien of a judgment is subject to all the equities which were held against the land in the hands of the judgment debtor at the time the judgment was rendered, and these will be protected by courts of equity as against the judgment lien, so that the latter may be confined to the interest remaining in the debtor after due recognition of the outstanding equities in their proper order." This doctrine is particularly applicable in the present case when the record notice of the verdict in the ejectment case is considered. We are of the opinion that the master's decision on this point was correct and we refer to his report for a further discussion of the question.

Another question brought up by the exceptions is as to the fee allowed the plaintiff's attorney in the partition proceedings. In the report of the master it is fixed at $250. The master had no power to allow any fee of any amount to the plaintiff's attorney. The compensation is for the plaintiff and must be taxed by the Court. The Act of April 27, 1864, P. L. 641, provides, "That the costs in cases of partition in the Common Pleas and Orphans' Courts of this commonwealth, with a reasonable allowance to the plaintiffs or petitioners for counsel fees, to be taxed by the Court or under its direction, shall be paid by the parties in proportion to their several interests."

This act has been construed by the Supreme Court in several cases. We shall refer to only one of them, it being a case in equity: Fidelity Ins. Co.'s Appeal, 108, Pa., 339, in which Mr. Justice Sterrett says:

"If there ever was any doubt as to the object and scope of this act, it should have been dispelled by what was said in Snyder's Appeal, 4 P. F. S., 67, and Grubb's Appeal, 1 Norris, 23. The mischief and the remedy are clearly pointed out in those cases. It frequently occurred, as it still does, that in consequence of minority, coverture and other causes, one of several tenants in common was compelled to resort to proceedings in partition for the purpose of effecting a division of the property held by them in common; and, no matter how small his interest therein might be, he was under the necessity of employing counsel to conduct the proceedings to a conclusion which was quite as beneficial to each of the others as to himself. The entire burden of paying for indispensable professional aid, in conducting the formal proceedings in partition for the common benefit of all, was thus cast on the one who instituted the proceedings. The act was intended to remedy this injustice by requiring that a reasonable compensation for the necessary professional services of counsel retained by the plaintiff or petitioner, as the case might be, should be determined by the Court and paid by all the tenants in common in proportion to their respective interests. The design of the act was to place the parties upon a relative equality as to the necessary expenses of effecting a partition of the common property; and it was evidently intended that those expenses should include not only the docket costs proper, fixed by Act of Assembly or by the Equity Fee Bill, but also a reasonable allowance for counsel fees, graduated according to the circumstances of each particular case, the nature and extent of the services necessarily rendered for the common benefit of all the parties in interest. In view of what has been said, it is scarcely necessary to add that the 'reasonable allowance' contemplated by the act does not include expenses of adversary proceedings, resulting from a defense to the plaintiff's demand for partition or from any other cause. Such an allowance would be clearly beyond the scope of the act. The main ground of reversal in Grubb's Appeal, supra, was that

the auditor allowed counsel fees to the plaintiffs for what he termed 'the litigation of the defendant.'"'

In the case at bar there was no contest except before the master. The proceedings are not complicated. Only two parties were interested-the plaintiff and defendant. The partition involved only one piece of property. The plaintiff's bill for partition consists of six pages; there was an order that the bill be taken pro confesso; and there was a formal decree awarding partition and appointing a master. The real contest between the parties began before the master and nearly all the evidence on both sides relates to the rental value of the joint property, a farm. We have no doubt that plaintiff's counsel has earned $250, but he must look to his client for compensation. Nevertheless, the plaintiff is entitled to a reasonable allowance for counsel fee for the service rendered for the common benefit of the co-tenants. We therefore make an order allowing counsel fee of $100, to be taxed as a part of the costs in the case; and the exception is sustained to the extent above indicated.

All the other exceptions are overruled. We need not refer the report back to the master. Counsel will undoubtedly arrange matters amicably so as to leave the way open for final confirmation of the report.

IN RE ESTATE OF DANIEL S. GERMAN, DECD. Will-Option to Purchase Land-Laches.

An option to purchase real estate, under the terms of a will, at a certain valuation, must be exercised within a reasonable time after the death of the testator, unless the intention of the testator is otherwise expressed in the will.

In the Orphans' Court of Lehigh County. Petition of certain heirs to have the Decree opened and set aside, adjudging real estate of decedent to Edwin F. German.

M. C. Henninger and E. K. Kline, for Edwin F. German.

George J. A. Miller, and Freyman, Thomas & Branch, for heirs.